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2014 DIGILAW 49 (PAT)

State of Bihar v. Sudhanshu Kumar @ Lallan Singh

2014-01-13

AHSANUDDIN AMANULLAH, V.N.SINHA

body2014
V.N. SINHA, J.:–Heard learned counsel for the parties. 2. The State of Bihar and the informant of Begusarai Muffasil P.S. Case No. 327/03 has filed two appeals each arising out of judgment dated 19.08.2011, passed by Additional Sessions Judge-V, Begusarai, in Sessions Trial No. 150 of 2004 and 340 of 2005, whereunder the respondents Mahant Tribhuwan Das, Sampu Singh and Sunil Singh in Sessions Trial No. 150 of 2004 and respondents Sudhanshu Kumar @ Lallan Singh, Bhushan Bhagat @ Bhushan Chaurasia and Abhay Siungh in Sessions Trial No. 340 of 2005 have been acquitted for the charged offences under Sections 302, 302/34, 307 of the Indian Penal Code and Section 27 of the Arms Act. 3. Before we consider the merit of the submission of the counsel for the parties, it is necessary to mention that we shall consider the prosecution case and the evidence of witnesses recorded in support thereof from the records of Sessions Trial No. 150 of 2004 as the said Sessions Trial and the other trial i.e. Sessions Trial No. 340/05 arise out of same P.S. case i.e. Begusarai Muffasil P.S. Case No. 327/03. 4. Prosecution case, as unfolded in the fardbeyan, reiterated during trial, is that P.W. 3 Arvind Kumar, son in law of the deceased had come to the brick-kiln of his father in law Govind Singh in village Bahdarpur on 20.12.2003 around 10 A.M. to meet him from his residence at Begusarai. Around 10.30 A.M., on the same day, Govind Singh boarded his marshal jeep bearing no. BR09-B-6878 to come to village Bahdarpur for attending the Sradh ceremony of his cousin. Marshal jeep was being driven by his driver Ram Jatan Sahni (P.W. 4). No sooner the marshal jeep reached the main road the same was overtaken by a white Ambassador car bearing no. BHR-7706. Sudhanshu Kumar @ Lallan Singh came out of the Ambassador car and shot at the Marshal jeep. Father in law of the informant Govind Singh jumped out from the Marshal jeep and ran in the same direction in which Marshal jeep was proceeding but was chased by Sudhanshu Kumar @ Lallan Singh, who shot at him. Mahant Tribhuwan Das also followed Sudhanshu Kumar @ Lallan Singh in the chase and shot at Govind Singh. Govind Singh having run for some distance fell in the ditch. Mahant Tribhuwan Das also followed Sudhanshu Kumar @ Lallan Singh in the chase and shot at Govind Singh. Govind Singh having run for some distance fell in the ditch. Informant and others present at the brick-kiln saw the occurrence and came running to the place of occurrence where the deceased is said to have whispered to the informant and others i.e. P.Ws. 1, 2, 3 and 5 that he was shot at by Sudhanshu Kumar @ Lallan Singh and Mahant Tribhuwan Das. Telephonic information about the occurrence was given to Muffasil P.S. wherefrom three officers including P.W. 8 Ishwarchand Vidyasagar came to the place of occurrence by which time informant (P.W. 3) had taken the injured Govind Singh to Sadar Hospital, Begusarai in his Marshal jeep. The car of P.W. 3 in which he has come to the brick-kiln followed the Marshal jeep being driven by his driver Dilip Singh (not examined). One of the three officers coming from Muffasil P.S. inspected the place of occurrence and prepared seizure list dated 20.12.2003 at about 12 noon (Ext. 5), perusal whereof indicates that empty of the two cartridges and front portion of a bullet was recovered from the place of occurrence. Witnesses to the aforesaid seizure list are Dilip Singh (P.W. 6) and Ramashsish Yadav (not examined). The other Police Officer (P.W. 8) from amongst the three officers who came to the place of occurrence after getting the telephonic information moved in the direction in which the accused persons named in the fardbeyan made good their escape and later reached Sadar Hospital to collect the fardbeyan of P.W. 3. The third police officer Dhananjay Kumar (not examined) proceeded to the Sadar Hospital, Begusarai to know about the condition of the injured. The third police officer Dhananjay Kumar (not examined) proceeded to the Sadar Hospital, Begusarai to know about the condition of the injured. Dhananjay Kumar having reached Sadar Hospital drew the inquest report of Govind Singh (deceased) at 12.30 P.M. as also scribed the fardbeyan of P.W. 3 at 1.15 P.M. From perusal of the inquest report, it appears that the same has been drawn on the basis of the fardbeyan of Arvind Kumar (P.W. 3) on 20.12.2003 at about 12.30 P.M. Copy of the fardbeyan and the inquest report drawn by Dhananjay Kumar was handed over to P.W. 8, Officer in Charge, Muffasil P.S. at Sadar Hospital, Begusarai itself, which was forwarded to the police station by the Officer in Charge, on the basis of which present Muffasil P.S. Case No. 327/03 dated 20.12.2003 was registered. 5. It may also be stated at this juncture itself that close perusal of the seizure list, inquest report and the fardbeyan of the present case would indicate that seizure list has been drawn by S.I. Ramsakal Singh of Muffasil P.S., inquest report and the fardbeyan has been drawn/ scribed by another officer of Muffasil P.S., namely, Dhananjay Kumar. The Officer in Charge of Muffasil P.S. (P.W. 8) though reached the place of occurrence along with aforesaid two officers but having learnt about the direction in which accused persons escaped after committing the occurrence, proceeded in the same direction to search them. Later P.W. 8 reached Sadar Hospital, Begusarai and received fardbeyan of P.W. 3 from Dhananjay Kumar and registered Muffasil P.S. Case No. 327/03 as also took up its investigation, recorded the statement of the witnesses including the further statement of the informant, collected post mortem report and then submitted charge-sheet, on the basis of which cognizance was taken and case was committed to the Court of Sessions for trial. 6. During trial prosecution has examined 9 out of total 15 charge-sheet witnesses, namely, P.W. 1 Awadhesh Singh who is a co-villager of the deceased and came to the place of occurrence soon after the occurrence but claims himself to be an eye-witness. P.W. 2, Bipin Kumar is the brother of the informant (P.W. 3) and on the date of occurrence served as Munshi at the brick-kiln of the deceased. P.W. 2, Bipin Kumar is the brother of the informant (P.W. 3) and on the date of occurrence served as Munshi at the brick-kiln of the deceased. He also claims himself to be an eye-witness of the occurrence as after hearing the gun shot he along with other came running from the brick-kiln to the place of occurrence. P.W. 3 Arvind Kumar is the informant and son in law of the deceased. He also claims that earlier in the morning at about 10 A.M. had come to the brick-kiln to discuss urgent matters with his father in law who left the brick-kiln at about 10.30 A.M. in his Marshal jeep driven by P.W. 4 to attend Sradh ceremony of his cousin in the village but no sooner the jeep approached the main road the same was overtaken by the Ambassador car and the deceased was shot by Sudhanshu Kumar @ Lallan Singh and also by Mahant Tribhuwan Das as the two came out of the car and shot at the deceased. P.W. 4 Rajaram Sah is the driver of the Marshal jeep, who also sustained injury during the occurrence. P.W. 5 Arvind Thakur, P.W. 6 Dilip Singh claim themselves to be eye-witnesses of the occurrence as on the date of occurrence both served as Munshi of the brick-kiln. P.W. 6 is also witness of the seizure list prepared at the place of occurrence on 20.12.2003 at 12 noon. P.W. 7 Ajay Kumar is the son of the deceased but on the date of occurrence was at Delhi and came to Begusarai after he learnt about the occurrence. P.W. 8 Ishwarchand Vidyasagar is the Officer in Charge of Muffasil P.S., Begusarai who conducted the investigation of the case. P.W. 9 Doctor Dinesh Kumar Rajak has conducted the post mortem on the dead body of the deceased. After recording of the prosecution evidence accused persons recorded their statement under Section 313 Cr.P.C., in which they claimed themselves to be innocent but accused persons of Sessions Trial No. 340/05 further examined five defence witnesses in support of their defence. The trial Court having considered the merit of the prosecution case and the intrinsic value of the evidence of the witnesses delivered two impugned judgments acquitting the six respondents, three each in the two sets of appeal. 7. The trial Court having considered the merit of the prosecution case and the intrinsic value of the evidence of the witnesses delivered two impugned judgments acquitting the six respondents, three each in the two sets of appeal. 7. Counsel for the State, informant has challenged the impugned judgment and submitted that trial Court while considering the merit of the prosecution evidence ignored the fact that the three eye-witnesses i.e. P.Ws. 1, 2 and 3 have stood the test of cross-examination and ought to have been believed as they are consistent about the prosecution story that deceased boarded his Marshal jeep at his brick-kiln at about 10.30 A.M. for going to village to attend the Sradh ceremony of his cousin and while the jeep approached the main road the same was overtaken by the Ambassador car in which respondent Sudhanshu Kumar @ Lallan Singh and Mahant Tribhuwan Das along with others were sitting, Sudhanshu Kumar @ Lallan Singh came out of the Ambassador car, resorted to firing on the Marshal jeep damaging the jeep, meanwhile, deceased came out of the jeep and ran in the same direction in which the jeep was earlier moving. The deceased was not only chased by Sudhanshu Kumar @ Lallan Singh but also shot at by him and Mahant Tribhuwan Das. After running some distance the deceased fell in the roadside ditch. It is also submitted that the prosecution witnesses i.e. P.Ws. 1 to 3 having seen the occurrence from the brick-kiln ran to the pitch road and approached the deceased who whispered that he has been killed by respondents Sudhanshu Kumar @ Lallan Singh and Mahant Tribhuwan Das. In this connection, it is also pointed out that from the evidence of Doctor (P.W. 9), itself, it would appear that the death of Govind Singh was not instantaneous as he having run some distance fell down in the ditch and then whispered the names to the assailants to the eye-witnesses. Learned counsel also submitted that prosecution case has been promptly investigated, as according to him Investigating Officer (P.W. 8) having learnt about the occurrence on telephone reached the place of occurrence with three officers including himself. One of the three officers Sub-Inspector Ramsakal Singh prepared the seizure list of the incriminating articles recovered from the place of occurrence at about 12 noon. One of the three officers Sub-Inspector Ramsakal Singh prepared the seizure list of the incriminating articles recovered from the place of occurrence at about 12 noon. The other officer (P.W. 8) went in search of the accused persons in the same direction in which they had escaped. The third officer, S.I. Dhananjay Kumar came to Sadar Hospital where the deceased was removed by P.W. 3 in the Marshal jeep, prepared the seizure list and scribed the fardbeyan. Learned counsel further submitted that close perusal of the seizure list, inquest report and the fardbeyan drawn at the place of occurrence and at Sadar Hospital, Begusarai respectively would indicate that the Investigating Officer and the other two Sub-Inspectors conducted the investigation in a fair manner. It is further submitted that even though there are minor contradictions in the evidence of the eye-witnesses i.e. P.Ws. 1 to 3, the prosecution case has been proved beyond reasonable doubt, the Court below, however, taking a myopic view of the evidence on record and minor contradictions, which ought to have been ignored, has wrongly acquitted the six respondents in the two sets of appeal. In support of the aforesaid contention, learned counsel for the State, informant has relied on the judgment of the Supreme Court in the case of Bathula Nagamalleswara Rao and Ors. Vs. State Represented by Public Prosecutor, (2008) 11 Supreme Court Cases 722, paragraphs 55, 56, Mahesh son of Janardhan Gonnade Vs. State of Maharashtra, (2008) 13 Supreme Court Cases 271 and Valson and Anr. Vs. State of Kerala, 2008(4) BBCJ 443 (SC) and with reference to the aforesaid three judgments, it is submitted by the learned counsel for the State, informant that consideration of the prosecution evidence by the trial Court is perverse, the minor contradiction noticed in the evidence of P.Ws. 1 to 3 ought to have been ignored. Failure of the trial Court not to ignore the minor contradiction is nothing but perversity in its approach for which the judgment is fit to be set aside. It is further submitted that the maxim “falsus in uno, falsus in omnibus” is not applicable in dispensation of criminal justice in India. 1 to 3 ought to have been ignored. Failure of the trial Court not to ignore the minor contradiction is nothing but perversity in its approach for which the judgment is fit to be set aside. It is further submitted that the maxim “falsus in uno, falsus in omnibus” is not applicable in dispensation of criminal justice in India. It is also pointed out that in India principle of separating the grain from chaff is applicable and any part of the prosecution evidence which tantamounts to embellishment in the prosecution case is fit to be ignored provided the substratum of the prosecution case is otherwise found intact. 8. Counsel for the respondents with reference to the findings recorded by the trial Court in paragraphs 23, 24 of the judgment delivered in Sessions Trial No. 150/04 has submitted that close perusal of the said paragraph would indicate that none of the so called eye-witnesses i.e. P.Ws. 1, 2, 3 and 6 reached the place of occurrence soon after the occurrence or were witnesses to the occurrence. They pointed out that evidence of P.W. 1 has been discussed in paragraph 8 of the judgment. P.W. 1 claims himself to have arrived at the place of occurrence earlier to P.Ws. 2 and 3 but in paragraphs 26, 27 he has clarified that he heard about the occurrence in his village and came to the place of occurrence along with 500 other villagers. He has also stated in paragraph 27 that after his arrival at the place of occurrence Arvind Kumar (P.W. 3) reached there. In paragraph 31 P.W. 1 further stated that when he came to the place of occurrence he found the injured senseless. The evidence of P.W. 2 has been discussed by the trial Court in paragraph 9 of the judgment and having discussed his evidence in paragraph 9 he has also been disbelieved in paragraph 23 of the judgment as the trial Court has found that he recorded a signed statement before the police but the said statement was not produced. Non-production of the signed statement of P.W. 2 referred to in his evidence becomes relevant as after having recorded the signed statement of P.W. 2 who claims to be an eye-witness of the occurrence the seizure list (Ext. 5) was prepared at about 12 noon. Non-production of the signed statement of P.W. 2 referred to in his evidence becomes relevant as after having recorded the signed statement of P.W. 2 who claims to be an eye-witness of the occurrence the seizure list (Ext. 5) was prepared at about 12 noon. Non-production of signed statement of P.W. 2 is indicative of the fact that perhaps a different version was recorded in the signed statement of P.W. 2. Informant (P.W. 3) has also been disbelieved by the trial Court as he recorded his fardbeyan at the hospital at 1.15 P.M., prior thereto inquest report of the deceased was prepared by Dhananjay Kumar, S.I. Muffasil P.S. at 12.30 P.M. (not examined) in which Chandrika Prasad Singh and Madan Mohan Singh, the two agnates of the deceased are witnesses (both not examined). The informant, who recorded his fardbeyan at 1.15 P.M., though available at the hospital right from the time of arrival of Govind Singh at the hospital, did not become witness of the inquest, which was prepared on the basis of his fardbeyan. For the reasons best known to the informant he did not put his signature on the inquest of the deceased though it is the consistent prosecution case that informant came along with his father in law injured in the Marshal jeep to Sadar Hospital, Begusarai where he was declared brought dead. Informant being available when his injured father in law was brought to the hospital and declared brought dead, he was required to have not only put his signature on the inquest report of his father in law but should also have recorded the fardbeyan at least at the same time. Inquest having been drawn at 12.30 P.M. there is no reason as to why the fardbeyan was not recorded at the same time. Perusal of the fardbeyan indicates that the same was drawn at 1.15 P.M. on the basis of which inquest report was prepared at 12.30 P.M. such being the state-of-affairs the recording of fardbeyan and the inquest report on 20.11.2003 at 1.15, 12.30 P.M. respectively becomes doubtful. The presence of P.W. 3 at the place of occurrence either at the time of occurrence or soon thereafter having become doubtful in view of the evidence of P.W. 1 that he reached the place of occurrence first, whereafter the others i.e. P.Ws. The presence of P.W. 3 at the place of occurrence either at the time of occurrence or soon thereafter having become doubtful in view of the evidence of P.W. 1 that he reached the place of occurrence first, whereafter the others i.e. P.Ws. 2, 3 and 6 arrived there, according to the learned counsel for the respondents appreciating such evidence trial Court rightly doubted presence of P.Ws. 2, 3 and 6 at the place of occurrence in paragraphs 23, 24 of the judgment. In the light of the aforesaid finding in paragraphs 23, 24 of the impugned judgment counsel for the respondents placing reliance on the judgment of the Privy Council in the case of Sheo Swarup and others Vs. King Emperor, A.I.R. 1934 Privy Council 227 submitted that though the High Court has power to reverse an order of acquittal after re-appraising the evidence led in the trial Court but such reversal of the finding recorded by the trial Court should be made in a case in which the lower court has obstinately blundered or has through incompetence, stupidity or perversity, reached such distorted conclusions as to produce a positive miscarriage of justice or has in some other way so conducted or misconducted itself to produce glaring miscarriage of justice. It is submitted that on consideration of the evidence of eye-witnesses and the manner in which the investigation of the present case was conducted, it is difficult to believe the prosecution case, which is evident from the fact that it is difficult to synchronize the timing of recording the fardbeyan, preparing the inquest report, the seizure list and for failure of the prosecution to synchronize the time of writing the fardbeyan, preparing seizure list and the inquest report as also to produce the signed statement of P.W. 2, it is difficult to ascertain the time of occurrence, the manner in which the investigation proceeded, coupled with the fact that the three eye-witnesses though claimed to have come to the place of occurrence soon after the shots were fired but from the evidence of P.W. 1, it is quite established that it was he who came first to the place of occurrence along with 500 villagers, found the deceased senseless and by that time none of the eye witnesses i.e. P.Ws. 2, 3 and 6 had reached the place of occurrence. 2, 3 and 6 had reached the place of occurrence. In the aforesaid view of the matter that there being no explanation to synchronize the timing of drawl of fardbeyan, inquest report and the seizure list, coupled with the fact that the prosecution witnesses are not consistent about the time of their arrival of the place of occurrence, the trial Court has rightly chosen not to rely on them. Learned counsel for the respondents with reference to the Post Mortem Report and the evidence of the Doctor (P.W. 9) submitted that Govind Singh suffered gun shot injury in head, which went through and exited near his eye on the other side. Injured being instantaneously paralyzed could not have been in a position to whisper the name of the assailants to the so called eye-witnesses and their presence at the place of occurrence having already been doubted, the trial Court placing reliance on the so called eye-witnesses, has rightly acquitted the respondents, which according to counsel for the respondents, cannot be said to be misreading of the evidence placed on record. Once the evidence on record have not been misread by the trial Court, according to the counsel for the respondents, it would be difficult for this Court to hold that the trial Court has taken a perverse view of the evidence on record. 9. To buttress the aforesaid submission learned counsel for the respondents has also relied on the judgment of the Supreme Court in the case of Gangabhavani Vs. Rayapati Venkat Reddy & Ors., 2013 (6), Supreme 238, paragraphs 7, 8, Putchalapalli Naresh Reddy Vs. State of A.P. & Etc., 2013 (7) Supreme 620 , Joginder Singh Vs. State of Haryana, 2013 (7) Supreme 678 , paragraph 13, 15 and Ayodhya Dube and others Vs. Ram Sumer Singh, 1981 (Supp) Supreme Court Cases 83 wherein judgment of the Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P., AIR 1962 SC 1788 has been explained and it has been held that criminal justice system does not admit a pigeon holing. Life and the law do not fall neatly into slots. When a Court supports laying down Rules enumerated (1), (2), (3), (4) or (a), (b), (c), (d), it is arranging for itself traps and pitfalls. Categories, classifications and compartments, which statute does not mention, all tend to make law less flexible, less sensible and less just. Life and the law do not fall neatly into slots. When a Court supports laying down Rules enumerated (1), (2), (3), (4) or (a), (b), (c), (d), it is arranging for itself traps and pitfalls. Categories, classifications and compartments, which statute does not mention, all tend to make law less flexible, less sensible and less just. In the background of the aforesaid dictum of the Supreme Court, it is submitted by the counsel for the respondents that neither the investigation of the present case has been conducted fairly, which is quite evident from the different steps which has been taken by the Investigating Officer which does not synchronize with each other but the witnesses in order to secure the conviction has become the eye-witness though from their own evidence they appear not be the eye-witness as each of them have contradicted the other. 10. Having considered the rival submissions of the parties in the light of the law laid down by the Privy Council in the case of Sheo Swarup (supra) and the judgment of the Supreme Court following Sheo Swarup, we have examined the facts of the present case. It appears the occurrence took place at about 10.30 A.M., soon thereafter informant (P.W. 3) removed the injured to Sadar Hospital, meanwhile, on the basis of the telephonic information Officer in Charge, Muffasil P.S. and two other officers along with armed force came to the place of occurrence. Officer in Charge (P.W. 8) moved in the direction in which accused persons escaped and later came to Sadar Hospital, collected the fardbeyan from Dhananjay Kumar. Another officer, Sub-Inspector Ramsakal Singh remained at the place of occurrence, made preliminary investigation, recorded singed statement of P.W. 2, prepared seizure list (Ext. 5) at the place of occurrence on 20.11.2003 around 12 noon. Dhananjay Kumar, another S.I. attached to Muffasil P.S. proceeded to the Sadar Hospital to know about the condition of the injured, to record his statement and the statement of P.W. 3 and others. The written statement of P.W. 2 has not been produced in Court, perhaps for the reason that the version recorded therein was different from the one recorded by P.W. 3 at 1.15 P.M. at the hospital, Ext. 3 on the basis of which First Information Report of the present case was drawn. The written statement of P.W. 2 has not been produced in Court, perhaps for the reason that the version recorded therein was different from the one recorded by P.W. 3 at 1.15 P.M. at the hospital, Ext. 3 on the basis of which First Information Report of the present case was drawn. Before the fardbeyan was recorded at 1.15 P.M. at the hospital inquest report of the deceased was prepared at the hospital at 12.30 P.M. Column ‘1’ of the inquest report indicates that the same has been prepared on the basis of the contents of the fardbeyan of P.W. 3. Fardbeyan of P.W. 3 having been recorded at 1.15 P.M., it was required of the Investigating Officer to have explained in his evidence as to how the inquest report was drawn at 12.30 P.M., on the basis of the fardbeyan (Ext. 3) of P.W. 3 recorded by Sub-Inspector Dhananjay Kumar at 1.15 P.M. Investigating Officer has neither chosen to explain or synchronize the time of drawl of the three basic documents of the present case i.e. seizure list, inquest report and the fardbeyan, has not even brought the inquest report of the deceased as exhibit on the records of this case, though in paragraph 5 of his evidence in Sessions Trial No. 150/2004 has admitted that the inquest report of the deceased was prepared by Dhananjay Kumar, S.I. Muffasil P.S. Begusarai on 20.12.2003 at 12.30 P.M. In view of the failure of the prosecution to explain the timing of the three basic documents on which the foundation of the prosecution case rests, as noted above from the seizure list, inquest report and the fardbeyan as also for failure to produce the initial signed version recorded by P.W. 2 the Court below rightly disbelieved the eye-witnesses in paragraphs 23, 24 of the judgment. Taking note of the injuries found on the person of the deceased, as found by the Doctor conducting his post mortem vide Post Mortem Report (Ext. 6) and the evidence of the Doctor (P.W. 9), it is quite evident that Govind Singh suffered fir-arm injury in the temporal region, which went through and exited from the other side beneath his eye. 6) and the evidence of the Doctor (P.W. 9), it is quite evident that Govind Singh suffered fir-arm injury in the temporal region, which went through and exited from the other side beneath his eye. In the circumstances, he must have been instantaneously paralyzed having suffered the said fire-arm injury and could not have whispered the name of the assailants to the eye-witnesses, who approached him after he fell down in the ditch. Taking into account the aforesaid medical evidence and the manner of appreciation of evidence indicated by the Supreme Court in the case of Gangabhavani (supra), paragraph 7 that where the evidence of the eye-witnesses is totally inconsistent with the medical evidence, it tantamounts to a fundamental defect in the prosecution case and unless reasonably explained, may discredit the entire prosecution case. 11. In the light of our discussion made in paragraph 10 above, the trial Court has rightly disbelieved the prosecution case by taking a plausible view of the evidence placed on record, which does not require any interference by this Court. In the circumstances, we do not find any merit in the four appeals, which are, accordingly, dismissed.